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Amici Curiae: The Sexting, Corporate Candidates and Battle of Agincourt Edition

U.S. Anti-Corruption Law Hurting Haiti’s Re-building Efforts?
A throwaway line near the end of an op-ed in The Wall Street Journal this week has got bloggers buzzing about whether a U.S. anti-corruption law may be deterring foreign investment in earthquake-ravaged Haiti, thus inhibiting the small island nation’s efforts to rebuild itself. WSJ editorial board member Mary Anastasia O’Grady on Monday quoted an American entrepreneur who does business in the Caribbean as saying that: “We did not bother with Haiti as the Foreign Corrupt Practices Act precludes legitimate U.S. entities from entering the Haitian market. Haiti is pure pay to play.”  The FCPA, which “prohibits corrupt payments to foreign officials for the purpose of obtaining or keeping business,” has given the U.S. DOJ quite the bang for its enforcement buck: The Department agreed in 2008 to a whopping $450 million settlement with Siemens, the German engineering conglomerate, and in 2009 to a $409 million settlement with KBR, an American engineering and construction firm.

Haiti’s pressing need for foreign investment dollars prompted Eric Lipman of LegalBlogWatch to observe that “[i]t should not be necessary to suspend enforcement of an anti-corruption law to enable U.S. companies to participate, but, realistically speaking, is it justified in this case to look the other way for a time?” Ashby Jones of the WSJ Law Blog picks up that line of thinking and asks: “Let’s assume, for now, that suspension of the FCPA would, in fact, lead to more badly needed U.S. investment in Haiti — a country in desperate need of every last dollar.  [I]s that any way to get a country like Haiti back on its feet — by perpetuating a culture of corruption?” Those who are particularly curious may want to check out this paper by Andrew Brady Sterling of the University of Mumbai, who argues that “in countries where bribery is perceived to be relatively common, the present enforcement regime goes beyond deterring bribery and actually deters investment,” thereby functioning as “as de facto economic sanctions.”

The New Breed of ‘Corporate’ Candidates
The Washington Post recently introduced its readers to Murray Hill, who the paper suggested “might be the perfect candidate for this political moment: young, bold, media-savvy, a Washington outsider eager to reshape the way things are done in the nation’s capital.” So perfect, we might add, that Murray Hill might not be human. And indeed, he — err, it — is not. In fact, Murray Hill is Murray Hill Inc., a small, five-year-old public relations company that is seeking office to prove a point. As the Post tells it, after the U.S. Supreme Court, in its decision in Citizens United v. Federal Elections Commission (discussed in depth here), ruled that corporations essentially have the same rights as individuals when it comes to funding political campaigns, “the self-described progressive firm took what it considers the next logical step: declaring for office.” Perhaps the firm took its cue from Justice Stevens who, in his fiery dissent in Citizens, suggested — sarcastically, we hazard — that “it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.” Murray Hill couldn’t agree more. “Until now, corporate interests had to rely on campaign contributions and influence-peddling to achieve their goals in Washington,” the candidate, who was unavailable for an interview, said in a statement to the Post. “But thanks to an enlightened Supreme Court, now we can eliminate the middle-man and run for office ourselves.” Murray Hill has nearly 10,000 fans on Facebook and boasts a YouTube clip that has northward of 200,000 hits. The campaign website, complete with t-shirts and mugs for sale, can be found here.

No Constitutional Right to ‘Sexting’ … Yet
Here’s an awkward question: Do teens, tweens or anyone else under 18 have a First Amendment right to send sexually explicit messages or photos — especially of themselves — through their cell phones? Alas, the U.S. Court of Appeals for the Third Circuit ducked from answering it this week, instead saying “we decline to consider it.” That said, in its opinion, the court nevertheless found for a 16-year-old claimant arguing for such a right, ruling that a prosecutor “could not charge her merely for appearing in a photograph without evidence she had engaged in distributing it,” as the WSJ Law Blog reports. The back story, the Philadelphia Inquirer explains, involves school officials coming across pictures of  nude and semi-nude girls on male students’ phones. The local prosecutor told parents that “any student who appeared in a photo and did not attend an ‘education program’ of his choosing would be charged with child pornography.” The parents refused to send their kids to the program and instead sued for an injunction. The prosecutor’s lawyer told the Inquirer that his client was “disappointed” by the decision, but added that he was pleased “the court did not hold that the transmission of photographs of naked children by other children is protected by the First Amendment.”  It’s not clear if the young men who actually received the photographs of their female classmates, some of whom were as young as 12, were charged.

The Experience of Justice Stevens
“Stevens. Is. The. Man.” wrote a fellow contributing editor at this blog in response to U.S. Supreme Court Justice John Paul Stevens’ remarkably astringent 90-page dissent in Citizens United v. Federal Election Commission (briefly mentioned above and, again, discussed at length by The Court here). “Is” shall soon be “was”, though, and the New Yorker’s Jeffrey Toobin speculates as to SCOTUS’ likely tilt once Stevens retires. In his interview and survey of Stevens’ career, Toobin manages to wring from the judge that he will retire within the next three years. Stevens, writes Tobin, “generally bides his time.” However, given that Barack Obama’s presidential term ends in December, 2012, and in light of Cheney-oid forecasts that Obama will be a “one-term president“, there are doubtless many that would like him to get on with it and allow his replacement by a similarly forceful liberal voice on the now-conservative court. Toobin writes that Stevens, appointed by Gerald Ford in 1975 and “the fourth-longest-serving Justice in the Court’s history,” has grown to serve a valuable role as counterweight on the court, one that complements the “complex balancing act” of experience and precedent in his constitutional approach. His has been an approach, says Toobin, directly opposed by Justice Antonin Scalia, whose “caustic certainties” annually lead the two justices into direct constitutional conflict, with Scalia writing separate concurrences specifically critical of Stevens’ invocation of experience as a jurisprudential tool. Not only was Scalia’s concurrence in Citizens United partly a response to Stevens’ dissent, but the 2008 capital punishment case of Baze v. Rees saw Scalia baldly stating his intent to correct Stevens’ experiental error: “purer expression cannot be found of the principle of rule by judicial fiat,” wrote Scalia, accusing him of an egotism wherein “it is Justice Stevens’ experience that reigns over all.” Even in 2008, three years after Chief Justice Roberts’ confirmation of the SCOTUS conservative ascendancy, the admonition seemed ill-put. In hindsight of Stevens’ Lear-like flare-up in Citizens United, though, it seems de trop. While it now “reigns” over little, Stevens’ 34 years of experience with the Supreme Court was surely deserving of greater respect, even by his chief antagonist.

Henry V: King of England, Duke of Aquitaine, War Criminal, Pedophile
Did Henry V’s massacre of French prisoners at Agincourt make him prospectively liable under the Alien Tort Statute? Washington Briefs reports on the appointment of SCOTUS justices Ruth Bader Ginsburg and Samuel Alito Jr. to a 7-member blue-ribbon panel charged with determining Henry’s criminal liability for having ordered his soldiers to kill French POW’s, who “were suddenly sticked with daggers…brained with pollaxes…[and] slaine with malls [while] others had their throats cut, and some had their bellies punched.” So went one grisly, bathetic account, anyway, although the primary documentary source relied on by the court was the skeletal treatment accorded the massacre-order by Shakespeare in Henry V, i.e., “Then every soldier kill his prisoners; give the word through.” That’s about it. Anyway, although Henry’s legal team archly argued the originalist doctrine of “Cardinal Scalia” as to the Roman founding fathers’ intention to feed all POW’s to lions, as well as “the experiences of American King Richard XXXVII, ‘who said that if the King does it, it’s not legal,” Henry was found criminally liable under the ATS. Justice Ginsburg (chief justice of these proceedings) also looked askance at Henry’s romance with 14 year-old French princess Katharine, telling the defence that “your client is a pedophile.”

U.S. Appeals Court Narrows Privacy Protections for Email
The U.S. Court of Appeals for the Eleventh Circuit was wrong on the law when it handed-down a decision that “largely eliminates” constitutional protections against searches of email, Orin Kerr argues over at The Volokh Conspiracy. The court, in Rehberg v. Paulk, ruled that constitutional protection in stored copies of e-mail held by third parties disappears as soon as any copy of the communication is delivered. As Kerr explains, “Under this new decision, if the government wants get your e-mails, the Fourth Amendment lets the government go to your ISP, wait the seconds it normally takes for the e-mail to be delivered, and then run off copies of your messages.” (Gmail users, take note: You may want to figure out where the Google servers storing your email are located!) The court’s reasoning seems to hinge on the conclusion that the claimant’s hitting the send button on his messages amounted to “voluntary delivery of emails to third parties,” thereby constituting “a voluntary relinquishment of the right to privacy in that information.” Kerr takes issue with that reasoning on the basis that it doesn’t properly address the relative privacy expectations for different copies of the same email. “[W]hen many copies of information are made, you have to treat different copies differently,” he argues, citing precedent concerning postal mail cases. For example, an individual’s privacy expectation in a letter left in a public place would be very different from that for a photocopy of the same letter kept at home. “For these reasons, the court should have analyzed access to the e-mails stored with the ISP based on whether there was a reasonable expectation of privacy in that remotely stored copy accessed, independently of delivery of another copy” [emphasis in original]. Such a fact-specific inquiry may lead one to conclude there is no reasonable expectation of privacy, but not necessarily.

Pelosi Part II: Not Weirdo, but Weasel
We Canadians may think ourselves parliamentarily sophisticated, particularly in light of the last two years’ explosion in the use, both dictional and political, of “prorogation“. If so, we are badly deluded. For sophistication, one could hardly better the controversial “deem and pass” procedural stratagem about to be employed by the Obama administration in its struggle to pass its health care bill, free of the threat of filibuster. In this scheme, to put it simply, the bill’s general provisions would be approved by the House of Representatives, while specific (and Democratically unpopular) Senate amendments would be deemed, under parliamentary self-executing rule, to have passed as well and – with Presidential signature – become law. The Atlantic’s Clive Crook, however, takes to task House Speaker Nancy Pelosi (whose odd, counter-temporal legislative ideas were recently noted here) for “nakedly” lying to the electorate about the proposed passage of the health care bill. “Deem and pass” is related to “reconciliation“, the process wherein a budget measure can avoid a filibustered fate and, once invoked, automatically enact changes in existing revenue and expenditure structure that accommodate the budget measure in question. In this case, writes the Washington Post’s Amy Goldstein, “the self-executing rule would say that the Senate’s version of health-care legislation would be deemed approved if House members adopt a set of changes to that bill,” and that “the original bill could go directly to President Obama to be signed into law.” The procedure itself is time-hallowed enough, says Crook, previous Republican governments having frequently used to it push through tax measures that swelled the U.S. budget deficit. Too, Tea Party-ish opposition is predictable and predictably amnesiac. But the particular betrayal, argues Crook, is to Democratic voters, as Pelosi’s “deem and pass” is a not simply a means to procedural streamlining: rather, it is a “cover” for “her members to be able to vote for the Senate bill while telling their voters back home they have not.”

[filed: List of cases]

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